Sally Harpold, Chaos, and the Ethics of Law-making

As we contemplate a House health care reform bill that is over 2,000 pages long, it might be a good time to revisit the cautionary tale of Indiana grandmother Sally Harpold, and its lessons about law, fairness, responsibility, and Chaos Theory, not to mention ethics.

Sally’s husband was suffering from allergies, so she bought some  Zyrtec-D allergy medicine at a local pharmacy. Several days later, she purchased a box of Mucinex-D cold medicine for her adult daughter at another drugstore.
Harpold, like most of us, didn’t pay too close attention to the ingredients on the boxes she bought on the two visits to the drug stores, but even if she had, it is unlikely that she would have known that her second purchase put her in violation of a law that makes purchasing 3.6 grams total of pseudoephedrine in less than a week a crime.

But it did. The purchases put her in violation of Indiana law 35-48-4-14.7, so four months later, Harpold and her husband were awakened  by the unpleasant sound of the police banging on the door of their home.  They arrested her, cuffed her, and took her away to jail, charged with a Class C misdemeanor carrying penalties of up to $500 in fines and 60 days imprisonment. Then there was the humiliation: her police mug shot ended up on the front page of the local paper under 17 Arrested in Drug Sweep!

You see, pseudoephedrine may be a decongestant to her and most of us, but it also happens to be an ingredient of methamphetamines.  The law was intended to catch meth dealers, not grandmothers.  There had been a frightening increase in methamphetamine production in the community, and law enforcement officials asked for, and got, some tough laws to put the brakes on. The laws worked, too, not that this is any consolation to Sally Harpold.The prosecutor actually prosecuted Harpold, arguing that 1) the law doesn’t require purchase with the intent to manufacture meth, and 2) the old legal motto, “Ignorance of the law is no excuse.”

Well, lack of  sense and fairness is no excuse either. A law that depends on uncommon knowledge to avoid breaking it (who keeps track of how often they have purchased pseudoephedrine?), and that law enforcement officials have not made a point of publicizing (that would undermine the law’s effectiveness in catching meth-makers, so the law was generally unknown to the non meth-using public) and that doesn’t require the intent to do what the law is designed to stop isn’t a law at all. It’s a trap.

When laws become so complicated and obscure that law-abiding, honest citizens can become criminals by accident, then a democracy is officially broken. In a democracy, the public makes the laws (or their representatives do) and the laws serve them. When public officials make laws that only they can understand (and that’s giving the benefit  of the doubt) , whatever their rationale, it is time to stop trusting them. The system has officially turned upside-down. Instead of elected officials serving our needs by passing the laws we need, we then have officials manipulating and threatening us with the laws they want.

Vigo County Sheriff Jon Marvel was quoted by Reason Magazine about Harpold’s misfortune. “It’s unfortunate, “ he said. “But for the good of everyone, the law was put into effect. I feel for her, but if she could go to one of the area hospitals and see a baby born to a meth-addicted mother …”

Hey, finish that sentence, Sheriff. Is it “….then she’d understand why we have to arrest people who clearly have nothing to do with it” ? Or, “…then she’d be happy to be the victim of a badly written law, even though it won’t do that baby one bit of good”?

In late Michael Crichton’s novel “Jurassic Park,” mathematician Ian Malcolm derides the park’s creator for claiming that the computerized, hyper-tech, cloned-dinosaur park is safe and beyond malfunction. Malcolm explains that Chaos Theory dictates that when a system gets complicated enough, that very complexity ensures unpredictable results, because there are too many factors interacting to control. But the unpredictability itself is predictable: the smallest mistakes can have massive consequences.This appears to be the point that our system of laws and regulations has arrived at:  the certainty of error and resulting unintended results. Whether one is an advocate of health care reform or an opponent, it is essential to recognize that drafting and passing a bill that is 2000 pages, no matter what it says, is irresponsible. Such bills guarantee that the public is going to be affected by laws, rules and penalties it doesn’t understand and will not be adequately informed about. How many “omissions” will there be in a 2000 page bill, omissions like forgetting to make intent an element of the crime Sally Harpold was charged with? How many unintended consequences, far more sweeping than one grandmother getting a rap sheet for caring about her daughter’s head cold, are lying hidden in all those words, ready to be sprung by the workings of Chaos Theory?

The ethical virtue most abused here is humility, with competence and responsibility not far behind, and abuse of power in the mix, seasoned by arrogance Laws are powerful things. Bad ones hurt people, and inept ones do more damage than good. Large, complex laws are going to always have a lot of bad in them, because they have too many features that are certain to interact in unpredictable ways. Writing huge bills is irresponsible, even if those doing the writing are able, careful, brilliant, and untainted by bias or political considerations. We all know, I hope, that they aren’t any of these things.

They are exactly the same kinds and quality of people who wrote the Indiana law. Jeff Goldblum played Ian Malcolm in the film version of “Jurassic Park,” but it is a quote from another Jeff Goldblum film (“The Fly”) that comes to mind.

“Be afraid. Be very afraid.” For when laws are written by irresponsible and arrogant people, the law cannot be trusted.

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